The debate surrounding the labour rights of sex workers is one of the most polarising issues of modern international labour law. With Belgium’s recent decision to grant comprehensive labour protection to sex workers, many have hailed it as a human rights victory, while others warn of the social and moral dilemmas it introduces. For South Africa, where sex work remains criminalised, this global shift presents a unique opportunity to reconsider the nation’s stance, but with significant reservations.
As a point of departure, South Africa has made notable strides toward the goal of becoming the first African nation to decriminalise sex work. A move that represents a significant shift in this controversial topic. This change comes decades after the 1957 Sexual Offences Act, which criminalised sex work and brothels. Despite sex workers being denied Constitutional rights, particularly under the S v Jordan and Others (Sex Workers Education and Advocacy Task Force and Others as Amici Curiae (CCT31/01) [2002] ZACC 22; 2002 (6) SA 642; 2002 (11) BCLR 1117 (9 October 2002) judgment, a progressive legal shift is emerging. The 2022 Criminal Law (Sexual Offences and Related Matters) Amendment Bill seeks to repeal outdated laws and prioritise the dignity of sex workers, aiming to reduce gender-based violence, improve access to healthcare, and enhance protections. However, challenges remain, as society’s stigma and the need for robust regulation and enforcement could hinder the full potential of these reforms, which have yet to be formally introduced.
On 1 December 2024, Belgium became the first country to provide sex workers with extensive labour protections, including employment contracts, paid leave, health insurance, and pensions, after decriminalising sex work in 2022. The reforms aim to address exploitation and improve working conditions, ensuring workers can operate in a safe and regulated environment. Employers are now required to meet stringent licensing and safety standards, and workers retain the right to refuse clients or specific acts. Yet, challenges persist. Critics argue that the bureaucratic burden on businesses could drive parts of the industry back underground. Furthermore, local municipalities continue to impose restrictive regulations that may undermine the freedoms these laws intend to grant. It’s a delicate but intriguing balance for legislators to control.
Belgium is not an isolated precedent, though. Other countries offer varied approaches to sex work. New Zealand, for instance, decriminalised sex work in 2003, allowing workers to operate legally while being subject to health and safety standards. Germany legalised prostitution in 2002, granting workers access to social benefits, though enforcement issues and ongoing stigma remain significant challenges. The Netherlands takes a more entrepreneurial approach, recognising sex workers as self-employed individuals who must comply with tax and business regulations. These examples show that while regulation can reduce harm, it does not eliminate challenges like trafficking, informal operations, or societal stigma.
Despite South Africa’s notable strides regarding the Amendment Bill, the current stance is that sex work in South Africa remains criminalised, leaving workers vulnerable to abuse and exploitation and with limited access to healthcare. Advocacy groups argue decriminalisation would enhance safety and enable workers to seek legal recourse against exploitation. However, critics say that public health would pose a significant concern. Playing “devil’s advocate” would lead a counter by stating that decriminalising sex work could improve HIV prevention and treatment efforts, as workers would have better access to healthcare without fear of prosecution. Even if you are biased toward a specific view on this topic, you can’t deny that there are good arguments, for and against, with no side being able to “please society as a whole”.
Aside from the potential benefits, granting labour rights to sex workers in South Africa also faces significant hurdles. South Africa is historically deeply rooted in religious and cultural beliefs which strongly oppose the normalisation of sex work. At the same time, high unemployment and institutional inefficiencies may make enforcing labour protections impractical. Not to mention, vulnerable populations, such as undocumented migrants or workers unable to meet licensing criteria, may remain excluded from the protections, mirroring challenges seen in first-world countries like Belgium and Germany.
Granting labour rights to sex workers also raises complex issues and questions. While protections can empower individuals, they could also entrench a system that commodifies bodies, raising ethical concerns. And although legalising sex work could boost tax revenues, it may also enable exploitation under the guise of formal employment. How would dispute resolution at the CCMA play out with legitimate employers of sex workers, or will it be a “self-employed” practice? What would sex work licensing and criteria even look like in the South African context? These are but a few issues and questions it raises off the bat, with many more unanswered questions hanging in the balance. Should South Africa decriminalise sex work and later legalise it, these tensions potentially highlight the need for a balanced approach, ensuring reforms prioritise human rights without exacerbating the inequalities that South Africans have already faced in the past.
In an idealistic world, South Africa should chart its own path in addressing the labour issue of sex work, carefully considering its distinct socio-economic, cultural, and legal context. A key starting point could be the decriminalisation of sex work, which would help reduce stigma, improve safety, and enhance access to health services, much as seen in countries like New Zealand and the Netherlands. Testing regulatory models through pilot projects in select regions would also provide practical insights into the effectiveness of different approaches, helping to identify challenges and opportunities in enforcement and worker protection. Furthermore, broad stakeholder engagement is essential to ensure that any reforms are inclusive and context-sensitive, involving sex workers, advocacy groups, healthcare professionals, and policymakers in shaping laws that reflect the diverse needs of all those affected. Through these steps, South Africa could develop a unique approach that balances human rights with practical realities.
Belgium’s reforms represent a bold step forward in the global discourse on sex work. For South Africa, the question is not merely whether to follow suit but how to reconcile labour rights with societal values and practical realities. The debate will undoubtedly provoke discomfort, but it is through such discourse that meaningful progress is made, whether for or against it.
What’s your take? Should South Africa take inspiration from Belgium or forge its own path? Share your thoughts in the comments below.
Article By Carl Ranger
Head of Training at Consolidated Employers Organisation (CEO SA)